Background

The Formation of the Dolphin-Safe Label

In the eastern tropical Pacific Ocean (ETP), some schools of yellowfin tuna swim directly below dolphins. Since dolphins are air-breathing mammals and need to surface, they are easily spotted by fishermen who cast nets intentionally around dolphins in order to catch the tuna swimming below. Many dolphins drown in the purse-seining nets or suffer severe stress and die after being chased. Since the late 1950s, approximately seven million dolphins have died from this practice. As a result, three dolphin populations in the ETP–the northeastern offshore spotted, the eastern spinner, and the coastal spotted–are listed as officially “depleted” under the Marine Mammal Protection Act (MMPA).

Reacting to the high levels of dolphin mortality in the ETP, Congress amended the Marine Mammal Protection Act (MMPA) several times in the 1980s to encourage alternate methods of tuna fishing and, in 1990, created a highly popular consumer labeling program for "dolphin-safe tuna." This program outlawed the labeling of tuna caught by intentionally netting dolphins as "dolphin-safe." Other amendments required all nations exporting tuna to the U.S.to adopt dolphin protection programs "comparable" to that of the U.S. and sought an end to the intentional encirclement of dolphins with tuna nets in the ETP. These regulations, with enforceable trade triggers, resulted in dramatic reductions in dolphin mortalities.

Foreign Backlash Against the Dolphin-Safe Label

These amendments to the U.S. MMPA led to an embargo of tuna from Mexico and other countries in 1990. Mexico responded by appealing to what is now the World Trade Organization (WTO), which preliminarily ruled the U.S.embargo was a violation of international trade rules. The basis of this decision is the illogical notion that a country cannot block the importation of a product (tuna) that itself is not environmentally harmful, even if it is produced in a way (killing dolphins) that harms the environment.

Consequently, Mexico and other embargoed countries asked Congress to weaken the MMPA to lift the embargo and allow their tuna fishers to sell their dolphin-netted tuna in the U.S. under a "dolphin-safe" label. U.S. administration officials, under threat of trade sanctions by the WTO, met with government representatives from Mexico and other countries in 1995 to solve their "trade" problem. The Administration negotiated a deal, called the Panama Declaration, to eliminate the embargo provisions and allow Mexico and other countries to import tuna into the U.S. It also established minimum dolphin kill levels (above current dolphin death rates) and called for a reexamination of the "dolphin-safe" label.

Protecting Sound Science, Not Trade Policies

The National Marine Fisheries Service (NMFS) has released two recent studies, which both indicate that setting nets on dolphins has had a harmful effect on dolphin populations. The most recent report, released in August of 2002, found that depleted dolphin populations are not recovering in the ETP and that chasing and netting dolphins causes physiological stress and injuries, separates dependent calves from their mothers, and causes unseen dolphin deaths. Findings from the NMFS' studies indicate that despite the reported decreases in observed dolphin mortality, the three depleted dolphin species in the ETP (the northeastern offshore spotted, the eastern spinner, and the coastal spotted) have not recovered to anticipated population levels. In fact, at least one still appears to be declining, indicating that years of setting tuna nets on these dolphins has indeed had a significant harmful effect on their populations. Read the government report on the ETP fishery. The findings reinforce our long-held position that, in the absence of sound science proving that the encirclement method of tuna fishing is completely safe for dolphins, no "dolphin-safe" label should apply to tuna caught using this method, even if no dolphins are viewed killed or seriously injured by tuna boat observers.



Despite the results of the NMFS study, on December 31, 2002, Secretary of Commerce Donald Evans announced for the second time that the "dolphin-safe" label would be "weakened" to allow its application to tuna caught by encircling dolphins with tuna nets, as long as an on-board observer claims that no dolphins were killed or seriously injured during the fishing set. If the government's reports had failed to prove that the encirclement fishing method causes a "significant adverse impact" on any depleted dolphin populations, the law would have allowed the Secretary to weaken the "dolphin-safe" label in this way. However, Secretary Evans's decision flies in the face of the government's own experts' conclusions, as described in the NMFS report. Moreover, the U.S. Marine Mammal Commission, an independent agency that reviews federal policies regarding marine mammal protection, has urged Secretary Evans not to weaken the "dolphin-safe" label. Read the letter from the U.S. Marine Mammal Commission urging Secretary Evans not to weaken the "dolphin-safe" label.

The Administration’s intent is to use Secretary Evans’s flawed label finding to justify weakening our nation's "dolphin-safe" tuna standards. If successful, "dolphin-deadly" tuna, caught by chasing and encircling dolphins, will be able to enter the U.S. and be sold in stores with a fraudulent "dolphin-safe" label for the first time in decades deceiving millions of American consumers.

Fighting the Bush Administration's attempts to weaken the label

In 2002, Defenders and our allies filed a lawsuit against the Department of Commerce to prevent the misleading use of the "dolphin-safe" label on "dolphin-deadly" tuna. It is our belief that the Department of Commerce's decision to weaken the label was arbitrarily based on trade politics rather than science.Foreign trade interests should not be allowed to weaken our environmental laws.In April 2003, Defenders and our allies won a huge court victory in Earth Island Institute and Defenders of Wildlife et al. v. Evans, which upheld environmentalists' motion for a preliminary injunction, preventing the Bush administration from weakening the meaning of the dolphin-safe label.This case continues on the merits at the federal district court level.Defenders won a similar lawsuit in 2001 when the Commerce Department made an earlier attempt to weaken the dolphin-safe label, and we expect to prevail again.

Congressional Action, International Pressure and the Subsequent Flawed Domestic Regulations

In 1997, legislation was introduced in Congress that would have undermined the MMPA's ban on imports of tuna caught by netting dolphins. Dubbed the "Dolphin Death Act" by critics, this bill would have lifted the MMPA's ban on the encircling and catching of dolphins, and would have distorted the definition of the "dolphin-safe" label by allowing it to be used on tuna caught by encircling dolphins as long as no dolphins were "observed" killed, ignoring the unobserved harm this method places on dolphins and the enforcement loophole this system would create.Fortunately, due to the hard work by Defenders and its allies, the legislation was stopped before it passed the Senate.Defenders worked with a bipartisan team of Senators to offer a compromise that would resist the lowering of U.S. standards because of international trade concerns, while at the same time lifting the trade embargo for any tuna that meets the requirements of the new program. Our solution also sought to retain the "dolphin-safe" definition until clear scientific evidence proved that the encirclement method of tuna fishing does not injure dolphins. The compromise also made other positive changes to the tuna/dolphin program, including strengthening the sundown set prohibition and a revised tracking and verification system that would ensure that dolphin safe tuna is kept separate from non-dolphin safe tuna throughout the commercial process. This way there is no doubt that the tuna being labeled "dolphin safe" was really caught in a dolphin-safe manner.

The legislation that became law, known as the International Dolphin Conservation Program Act (IDCPA),was based on the compromise mentioned above that was forged by Defenders and the bipartisan group of Senators. It called for the lifting of the embargo on foreign dolphin-netted tuna provided certain conditions were met. It also mandated a scientific study by the U.S. National Marine Fisheries Service (NMFS) on the effects of intentionally encircling dolphins and a review of the "dolphin-safe" label based on the results of that study. By law, the Secretary of Commerce could only weaken the "dolphin-safe" label if the study showed that the encirclement fishing method does not cause a "significant adverse impact" on any depleted dolphin populations.

In May 1998, officials from the U.S. and other ETP tuna fishing nations signed an international agreement implementing the Panama Declaration and the new International Dolphin Conservation Program Act (IDCPA). However, the agreement is substantially weaker than the U.S. law in several respects. In January 2000, NMFS issued regulations to implement the IDCPA that follow the weaker agreement rather than the requirements of the law. Consequently, in April 2000, the Department of Commerce lifted the ban on tuna from Mexico. For the first time in a decade, Mexican tuna caught by intentionally netting dolphins can be sold in the U.S. Currently this tuna cannot be labeled "dolphin-safe," but if the Commerce Department has its way this tuna will be labeled "dolphin-safe" and consumers won't be able to tell the difference between it and truly dolphin-safe tuna.

Overfishing in the ETP

In 2000, Defenders and our allies filed a lawsuit challenging the new regulations on the grounds that they violate U.S. dolphin protection laws, as well as the National Environmental Policy Act (NEPA). Defenders believes that both the new regulations and the international agreement fail to adequately address the government's own experts' concerns, backed up by the best available science, that setting tuna nets on dolphins is having a detrimental impact on depleted dolphin species in the ETP. Both fail to address the reduction of other species incidentally taken in the course of fishing for tuna, known as bycatch. Both fail to consider reasonable alternatives for locating mature tuna not in association with dolphins. Incredibly, both also fail to address the over harvesting of the tuna stocks themselves, despite the fact that ETP tuna fishers are catching tuna in amounts far in excess of levels considered sustainable by fishery scientists. The government's action will lead to additional dolphin deaths annually, with no reduction in sight, in clear violation of the Marine Mammal Protection Act.

Defenders asked the Court to require the government to re-evaluate its lifting of the embargo, taking into consideration impacts on dolphin populations and marine biodiversity, and to prepare an environmental impact statement, as required by federal law, in order to take a hard look at the environmental impact of the new regulations and lifting the embargo. Defenders is seeking to have the U.S. government fully implement the dolphin-safe label and to stop admitted over-fishing in the area by other countries.

Overfishing is proving to be a mounting threat to our oceans, and more specifically to dolphins. As such, Defenders has recently taken a more active role in the Inter-American Tropical Tuna Commission (IATTC). The IATTC is the International forum that manages the tuna, swordfish, and billfish fishing operations active in the Eastern Tropical Pacific Ocean. Meaningful conservation measures are lacking, however, due to the consensus nature of the forum and the unwillingness of some participating countries to make mandates. Hence, there are very few provisions safe-guarding the long-term sustainability of the fish stocks themselves and even less for the conservation of other marine species impacted by the fisheries (such as dolphins, sea turtles, sharks, sea birds and other species). Currently, progress has been made with regard to requirements for large purse-seine vessels to carry observers and report data, but restrictions on smaller vessels and other fishing types (longlining and gillnetting) are still in their infancy or non-existent. To truly protect dolphins and other marine life, the impact of direct fishing (as discussed above) and indirect mortality due to overfishing need to be addressed and regulated. Get more information on Overfishing in the ETP.

Disaster Sundown Sets at the Supreme Court

At the U.S. Supreme Court, Defenders and a coalition of groups are appealing a divided court of appeals ruling concerning timing requirements on "sundown" sets, which are extremely injurious to already "depleted" dolphins in the Pacific Ocean. Defenders is challenging the Department of Commerce's regulations which permit setting nets on dolphins up to one half hour after sunset. The regulations violate the clear language of the 1997 law in which Congress decided that setting nets on dolphins should cease one half hour before sunset. The legal issue that might garner the attention of the Court is whether the executive branch of the federal government can draft a regulation based upon a non-treaty international executive agreement, rather than the plain language of the statute passed by Congress and signed by the President.

Safe-Guarding the Consumer

In the meantime, Defenders will continue its efforts to ensure that the U.S. tuna market remains dolphin-friendly despite any weakening of the “dolphin-safe” label. We are urging tuna companies and grocery stores to commit to selling only tuna that was not caught in association with dolphins. Already the three largest U.S. tuna companies, Star-Kist, BumbleBee and Chicken of the Sea, several national grocery chains and restaurants around the country have pledged to remain "dolphin-safe" regardless of any label change. View a list of Dolphin-Safe supermarkets and restaurants.

We are also monitoring the FDA and EPA’s joint advisory on methylmercury in tuna to further keep consumers informed on all aspects of these tuna/dolphin interactions. On December 10, 2003 the FDA and the EPA presented a draft of the revised consumer advisory for the risks of methylmercury when consuming fish. The advisory warns consumers about the risks of consuming some types of fish that they consider high in mercury, including, for the first time, canned tuna. Read more about mercury contamination in fish and its connection to dolphin protection.